Citation Nr: 0809197
Decision Date: 03/19/08 Archive Date: 04/03/08
DOCKET NO. 06-03 630 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
chronic lumbar sprain, status post laminectomy (claimed as
back pains) and if so, whether the reopened claim should be
granted.
2. Entitlement to an evaluation in excess of 30 percent for
asbestosis.
REPRESENTATION
Appellant represented by: Kirk L. McKay, Attorney
ATTORNEY FOR THE BOARD
Douglas J. Boorstein, Associate Counsel
INTRODUCTION
The veteran had verified active service in the United States
Merchant Marine from March 1943 to August 15, 1945. Service
from August 16, 1945, to December 20, 1945, has been
certified in his DD-214 as under Public Law 105-368
pertaining to active service solely for purposes of burial
and interment benefits.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California, which denied service connection for
a chronic lumbar sprain, status post laminectomy (claimed as
back pains). A separate rating decision in November 2005
continued a 30 percent rating for asbestosis.
The record shows that additional evidence was associated with
the claims files since the issuance of the most recent
statement of the case. Regarding the veteran's claim for
service connection for his back injury, a review of the
evidence discloses that the evidence is duplicative of
evidence previously considered by the RO or is not relevant
to the issue of service connection for the veteran's back
disability. Therefore, with regard to the veteran's back,
the issuance of a supplemental statement of the case,
pursuant to 38 C.F.R. § 19.37(a) (2007), is not necessary.
As discussed in further detail below, however, it is
necessary to remand the veteran's claim for an increased
rating for asbestosis.
The issue of entitlement to a rating in excess of 30 percent
for asbsestosis is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. In October 2003, the RO denied the veteran's claim of
entitlement to service connection for lumbar sprain, status
post laminectomy (claimed as back pains).
3. Evidence received since the October 2003 denial by the RO
is new and relates to an unestablished fact necessary to
substantiate the claim.
4. The veteran's back injury, to which his current back
disorders have been medically related, did not occur during a
period of active service.
CONCLUSIONS OF LAW
1. Evidence received since the October 2003 RO decision,
which denied service connection for the veteran's chronic
lumbar sprain, status post laminectomy (claimed as back
pains), is new and material and the claim is reopened.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007).
2. A back disorder was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 101, 1110, 5103, 5103A, 5107 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.7(x), 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA in terms of its duty to notify and assist
claimants. When VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and the representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183
(2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004), the United States Court of Appeals for Veterans
Claims held that VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide; and that
(4) VA will request that the claimant provide any evidence in
his possession that pertains to the claim.
The VCAA notice requirements apply to all five elements of a
service connection claim: (1) veteran status; (2) existence
of disability; (3) connection between service and the
disability; (4) degree of disability; and (5) effective date
of benefits where a claim is granted. Dingess v. Nicholson,
19 Vet. App. 473, 484 (2006).
The Board concludes that the veteran has been afforded proper
notice under the VCAA. The Agency of Original Jurisdiction
(AOJ) provided a VCAA notice letter to the veteran in August
2004. That letter notified the veteran of VA's and of his
responsibilities in obtaining evidence to support his claim
for service connection. The letter informed the veteran that
if there was any other evidence or information that the
veteran thought would support his claim, the veteran should
tell the RO. The letter also informed him of the
requirements for submitting new and material evidence to
reopen the claim as well as the criteria for establishing
service connection. The Board finds that VA has satisfied
the four elements of Pelegrini, supra.
To whatever extent the recent decision of the Court in
Dingess v. Nicholson, supra, requires more extensive notice
in claims for compensation, e.g., as to potential downstream
issues such as disability rating and effective date, the
Board finds no prejudice to the veteran in proceeding with
the present decision. The veteran was sent a letter
compliant with Dingess in March 2006. Although the veteran's
claim has not been readjudicated in a statement of the case
or a supplemental statement of the case, since the claim for
service connection is being denied, no disability rating or
effective date will be assigned, so there can be no
possibility of any prejudice to the veteran.
Kent v. Nicholson, 20 Vet. App. 1 (2006), established new
requirements regarding the VCAA notice and reopening claims.
The Court held that the VCAA notice must include the bases
for the denial in the prior decision and VA must respond with
a notice letter that describes what evidence would be
necessary to substantiate that element or elements required
to establish service connection that were found insufficient
in the previous denial. Id. Therefore, the question of what
constitutes material evidence to reopen a claim for service
connection depends on the basis on which the prior claim was
denied. See Evans v. Brown, 9 Vet. App. 273, 283 (1996)
(holding evidence is material if it is relevant to and
probative of an issue that was a specified basis for the last
final disallowance). The VA has adequately advised the
veteran of the basis of the previous denial. The letter
explained that the veteran should submit information
indicating that his injury occurred during service. In any
event, the claim is being reopened so any deficit in
notification is moot.
VA must also make reasonable efforts to assist the veteran in
obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In this case, it appears that parts of logbooks relevant to
the veteran's claim may have been destroyed while in the
custody of the United States government. Further, no attempt
has been made by the regional office to obtain any logbooks
that may remain. Ordinarily, a remand might be necessary,
to insure that VA had the full record before it. However, in
the circumstances of this case, a remand would serve no
useful purpose because, as explained below, the issue hinges
on the veteran's status at the time of the alleged injury.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); also
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the appellant are to
be avoided).
Assistance to the veteran shall also include providing a
medical examination or obtaining a medical opinion when such
an examination or opinion is necessary to make a decision on
the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R.
§ 3.159(c)(4). However, merely filing a claim for benefits
and showing a current illness does not trigger these duties.
VA's duty to provide a medical examination is not triggered
unless the record contains competent evidence that the
claimed disability began during service or within an
applicable presumptive period, and evidence of an association
between the claimed disability and that event, illness or
injury in service. 38 U.S.C.A. § 5103A; McLendon v.
Nicholson, 20 Vet. App. 79, 80 (2006). However, the Board
also notes that § 5103A only requires a VA examination when
the record "does not contain sufficient medical evidence for
the Secretary to make a decision on the claim." As the
record in this case does contain sufficient medical evidence,
the Board finds that a VA examination is not required.
In any event, as will be discussed in detail below, the
appellant is claiming a benefit to which he is not entitled
as a matter of law, and this fact precludes the need for
further development. 38 C.F.R. § 3.159(d)(3). As to VA's
duty to notify, it does not apply to matters on appeal when
the facts are not in dispute and the law is dispositive. See
Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-04.
New and Material Evidence
To reopen a claim which has been previously denied and has
become final, the claimant must present new and material
evidence. 38 U.S.C.A. § 5108. New and material evidence is
defined as evidence not previously submitted to agency
decision makers which, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim, which is neither
cumulative nor redundant, and which raises a reasonable
possibility of substantiating the claim. 38 C.F.R. §
3.156(a). In determining whether evidence is new and
material, the credibility of the evidence is generally
presumed. Justus v. Principi, 3 Vet. App. 510, 512-513
(1992).
In Elkins v. West, 12 Vet. App. 209 (1999), the Court of
Appeals for Veterans Claims held the Board must first
determine whether the appellant has presented new and
material evidence under 38 C.F.R. § 3.156(a) in order to
have a finally denied claim reopened under 38 U.S.C.A. §
5108. Then, if new and material evidence has been submitted,
the Board may proceed to evaluate the merits of the claim,
but only after ensuring that VA's duty to assist has been
fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321,
328 (1999).
Before the Board may reopen a previously denied claim, it
must conduct an independent review of the evidence to
determine whether new and material evidence has been
submitted sufficient to reopen a prior final decision. The
Board does not have jurisdiction to consider a claim which
has been previously adjudicated unless new and material
evidence is present, and before the Board may reopen such a
claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383
(Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1
(1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38
U.S.C.A. §§ 5108, 7105(c). If the Board finds that new and
material evidence has not been submitted, it is unlawful for
the Board to reopen the claim. See McGinnis v. Brown, 4 Vet.
App. 239, 244 (1993).
Historically, in this case, the veteran initially filed a
claim for service connection for back pain in May 1999. This
claim was denied in August 2000. The veteran took no appeal,
thus this decision became final. 38 U.S.C.A. § 7105(c). The
veteran has applied, multiple times, to the Department of
Veterans Affairs for benefits. Most recently, the claim was
denied by a rating decision dated October 2003. The veteran
did not take an appeal from this decision, hence it is now
final. 38 U.S.C.A. § 7105(c). The veteran again applied for
benefits in June 2004. Based on this letter and its
attachments, the Regional Office found that new and material
evidence had not been submitted and continued its denial of
service connection.
Prior to the October 2003 decision denying service
connection, the evidence, pertaining to the veteran's back
condition, consisted of medical records indicating treatment
from the early 1980s for a back condition. Private medical
reports of 1983 and 1984 reflect findings of lumbar spinal
stenosis, herniated lumbar disc and lumbar degenerative
arthritis. Further, the evidence consisted of a February
2002 examination performed under contract for VA by QTC in
which the examiner determined that the veteran's back injury
was "more likely than not" connected to his December 1945
back injury. An October 2002 VA examination also indicated
that the veteran's back injury was "at least as likely as
not" connected to the veteran's inservice low back condition
(the veteran related his back disorder as beginning with the
December 1945 incident). Additionally, the evidence
consisted of letters from various private individuals
indicating that the veteran reported back pain in the late
1940s and in 1950 as well as, among other evidence, ships
logs and other documents pertaining to the veteran's service
as a member of the United States Merchant Marine. One letter
from a private individual, E.B., indicated that the veteran
had incurred an injury in service.
Since the October 2003 rating decision, the veteran has
submitted an additional statement from another individual,
J.R., indicating that the veteran incurred an injury to his
back during service. The veteran also submitted additional
ship's logs from this individual. This evidence is new, in
that it has not been considered previously by the Regional
Office. It is also material, in that it is relevant to an
unestablished fact necessary to substantiate the claim. The
information provides additional corroboration for the
veteran's injury by a purported witness to the injury in
December 1945.
Therefore, the Board finds that this evidence does constitute
new and material evidence, and the claim is therefore
reopened.
Service Connection - Legal Criteria
The veteran contends that he incurred a back injury in
December 1945 and that, as it occurred while he was aboard
ship, he is entitled to benefits.
Eligibility for VA benefits is governed by statutory and
regulatory law that defines an individual's legal status as a
veteran of active military, naval, or air service.
38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. In
addition, laws and regulations provide that certain
individuals and groups are considered to have performed
active military, naval, or air service for purposes of VA
benefits. 38 C.F.R. § 3.7.
The term "veteran" is defined as a person who served in the
active military, naval, or air service, and who was
discharged or released therefrom under conditions other than
dishonorable. 38 U.S.C.A. § 101(2).
The term "active military, naval, or air service" includes
active duty, any period of active duty for training during
which the individual was disabled or died from a disease or
injury incurred in or aggravated in the line of duty, and any
period of inactive duty training during which the individual
was disabled or died from an injury incurred in or aggravated
in the line of duty. 38 U.S.C.A. § 101(24).
Under Public Law No. 95-202, § 401, 91 Stat. 1433, 1449-50
(Nov. 23, 1977), the service of certain groups who rendered
service to the Armed Forces of the United States shall be
considered "active duty for the purposes of all laws
administered by the Secretary of Veterans Affairs" if the
Secretary of Defense designates the group for such
consideration based upon the factors listed in the statute.
Pursuant to that statute, the Secretary of Defense
promulgated regulations establishing detailed criteria by
which to determine whether a group qualifies for
consideration as active duty under the Public Law, and
delegating to the Secretary of the Air Force the power to
determine whether specific groups so qualify. The Secretary
of the Air Force's determinations can be found under
38 C.F.R. § 3.7.
Under 38 C.F.R. § 3.7, active military service for
individuals in the American Merchant Marine includes only
oceangoing service during periods of armed conflict from
December 7, 1941, to August 15, 1945. 38 C.F.R. § 3.7(x)(14),
(15). Specifically, United States Merchant Seamen who served
on blockade ships in support of Operation Mulberry during
World War II and American Merchant Marines who were in
Oceangoing Service during the period of armed conflict from
December 7, 1941, through August 15, 1945, are considered to
have had active service.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110. Service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2007).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt
rule is inapplicable when the evidence preponderates against
the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir.
2001).
Service Connection - Analysis
The veteran has submitted multiple statements, both from
himself and other individuals, indicating that he had a back
injury in service. The veteran has consistently indicated
that his injury occurred in December 1945. He has submitted
statements from other individuals indicating that he had back
pain as early as the late 1940s. As discussed above,
multiple medical examinations attribute the veteran's current
back disability to his December 1945 injury.
However, as discussed above, service connection is limited to
residuals of those injuries incurred while the veteran was on
active service. Also, members of the United States Merchant
Marine have been determined to have been on active service
from December 7, 1941 to August 15, 1945. 38 C.F.R.
§ 3.7(x)(14), (15).
Even if the Board assumes, without deciding, that the
veteran's injury occurred as he contended, while he was
aboard ship as a member of the United States Merchant Marine,
the date of the injury is after August 15, 1945. Under the
applicable regulations, the veteran is not considered to have
been on active service at the time that the injury occurred.
Therefore, because the injury did not occur while the veteran
was on active service, the veteran does not have basic
eligibility for VA benefits based on this injury and his
appeal must be denied because there is a lack of entitlement
under the law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30
(1994); 38 C.F.R. § 3.303.
ORDER
New and material evidence having been received, the claim of
entitlement to service connection for the veteran's chronic
lumbar sprain, status post laminectomy (claimed as back
pains) is reopened.
Service connection for chronic lumbar sprain, status post
laminectomy (claimed as back pains) is denied.
REMAND
The Board finds that the issue of entitlement to a rating in
excess of 30 percent for asbestosis must be remanded for
additional development and issuance of a supplemental
statement of the case. In November 2006, subsequent to the
issuance of a supplemental statement of the case earlier that
month, the veteran submitted private medical records which
contained tests regarding the veteran's breathing ability,
expressed as a percentage of the veteran's predicted
pulmonary function. In October 2007, the veteran's case was
transferred to the Board.
Pursuant to 38 C.F.R. § 19.37(a) (2007), evidence received at
the RO before the case is transferred to the Board will be
considered by the RO and a supplemental statement of the case
will be issued unless the new evidence is duplicative of
evidence previously considered or is otherwise not relevant
to the appellant's claim. In the present case, the Board
finds that this evidence is relevant to the claim for an
increased rating for asbestosis. This evidence is relevant
as it provides an additional basis for rating the veteran's
asbestosis. This evidence is not duplicative of evidence
previously considered. See 38 C.F.R. § 19.37(a) (2007).
Thus, the Board finds that due process considerations compel
the conclusion that the RO must first adjudicate the claim
for an increased rating in light of the medical evidence not
previously considered. Under these circumstances, the Board
will remand this matter to the RO for consideration of the
pertinent evidence and for issuance of a supplemental
statement of the case reflecting such consideration. See
38 C.F.R. § 19.31 (2007).
Accordingly, the case is REMANDED for the following action:
Readjudicate the issue on appeal. If all
the desired benefits are not granted, a
supplemental statement of the case should
be furnished to the veteran and his
representative. The case should then be
returned to the Board if otherwise in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs